Volume 3 — Oregon Reports

<p>Construction. — A grant by the words, “To flow back tlie water to the foot of the present wheel ” * x * * * “ and the right at all times to use all the water which naturally flows below said mill Held, to mean the water as it flows from the mill-wheel, the mill beingfln operation.</p> <p>Idem. — It is necessary to give consideration to all parts of a deed in order to ascertain what was the intention of the parties; and for this purpose, surrounding circumstances within the knowledge of the parties at the time should be considered.</p> <p>Servitudes. — The purchaser of part of an estate takes it with the servitudes that are visibly attached at the time of the sale.</p> <p>IJietHT to Tond "Water. — The right to use water necessarily implies a right to dam and to detain it. One exorcising this right can only detain it. He cannot divert it. He must not detain it unreasonably, or let it off in unreasonable quantities.</p> <p>Idem. — What is unreasonable detention is, in general, a question of fact.</p>

<p>Gaknikhhts. — "Where a, person who is served with garnishee process voluntarily pays money to tho constable, it is not error for the justice of the jieace to refuse to enter an order directing the constablo to pay the money to the judgment debtor, although the money may be earnings for which the justice could not lawfully enter judgment.</p>

<p>Evidence. — Where the conversations of the defendants are admissible’ as confessions, the whole conversation relating to the subject may be admitted.</p> <p>Privilege or Witness.- — A witness on a former examination had made statements which were then reduced to writing; she was asked whether on that occasion she mentioned the name of one “Morris.” It was not error for the court to direct that the witness be allowed to inspect the writing before answering, although it appears on inspection that the name “ Morris ” was not contained in the writing.</p> <p>Degree oe Crime. — A defendant charged with stealing from the person, may be convicted either of larceny, or of larceny from the person, if the facts charged in the indictment arc sufficient to in eludo both, degrees 0j; crime.</p>

The plaintiffs are executors of the last will of W. C. Doment, deceased. J. D. .'Dement, one of the executors, being a resident of Ban Francisco, Gal., and the other, W. C. Johnson, residing in Oregon City, in this state; the latter had the personal care and management of the estate.

The case is presented on demurrer to the complaint. The complaint charges that in 1860 the plaintiff held a promissory note of $16,000 and interest, made by one David McLaughlin; that said McLaughlin at that time sold a valuable tract of land to one Daniel Harvey, receiving as part of the consideration said Harvey’s notes to the amount of $16,000, which latter notes Harvey deposited with said Amory Holbrook, giving to the latter power to act as said Harvey’s agent; that the…

Three different parties had each commenced an action against this defendant, a private corporation, and each had obtained a judgment by confession, the president of the defendant having confessed judgment in each, case on the 3d day of July, 1867. The names of the plaintiffs and the amount recovered by them, respectively, are as follows: Charles B. Miller recovered $8,373 30, A. J. Block recovered $378 67, and the Bank of British Columbia recovered $10,040.

<p>This case was heard on demurrer to the answer; the facts appear in the opinion filed in the cause.</p>

This case was beard on a motion for an injunction. Tbe complaint presents tbe following facts: Tbe plaintiffs grantor being tbe owner of lot 4, in block 4, in tbo city of Portland, bargained in writing, not under seal, with Moffit and Strowbridge, owners of tbe adjoining lot, (being lot 3 in tbe same block,) that M. and B. should build a wall on tbe line between tbe two lots for tbe mutual use of tbo owners, of dimensions as follows: Tbe “foundation twenty indies thick;…

The plaintiff recovered a judgment in justice’s court for $75, on tbe 12th of June, 1858. On tbe 7th of July following, tbe defendant appealed to tbe circuit court. On the same day tbe plaintiff filed a counter undertaking, in pursuance of section 71 of tbe act relating to justice’s courts. On tbe 16th of July tbe defendant filed with tbe clerk of this court a transcript of tbe docket and the original papers in tbe cause, in pursuance of section 72 of tbe act.

In this action the plaintiff claims $20,000 damages, for alleged unlawful arrest, wounding and imprisonment of the plaintiff. The defendants justify,- claiming that at the time of the arrest the plaintiff had recently committed a felonious assault with intent to kill, and was fleeing from justice, and that the wounding was necessary in order to secure his arrest.

<p>MOTION EOR A NEW TRIAL.</p> <p>New Teial. — The court is not at liberty to grant a new trial upon doubtful and disputed questions of fact.</p> <p>Newlx-Discoveeed Evidence. — Motions for new trial on the ground of newly-discovered evidence are regarded with distrust, and the strictest showing of diligence, and of all other facts necessary, is required. The testimony must have been discovered since the former trial; it must be shownthat.it could not have been obtained with reasonable diligence on the former trial; and it must not be cumulative.</p> <p>Affidavit of Witness. — It is a practice that seems to be generally approved, to require the affidavit of the moving party to be accompanied by the affidavit of the witness, or the omission to be accounted for.</p> <p>Cumulative. — Evidence of material facts which the moving party did not prove nor attempt to prove, may be regarded as not cumulative.</p> <p>Diligence.. — A party who moves for a new trial should be free from laches in not having moved for a continuance. It is not sufficient that the affiant depose in terms “that he has made diligent inquiry;” the affidavit should state facts. The question of diligence must be determined by a consideration of specific facts deposed to.</p>

The plaintiff alleges that he and the defendant were partners, owning a building and a stock of goods; that the parties dissolved the partnership, and that he sold his interest in the building, the goods and the business to the defendant for the sum of fifteen hundred dollars, which sum the defendant promised to pay him upon request, but had only paid $35, and, although requested, refused to pay the balance, $1,465.

<p>Where S. has a contract with K., the owner of a ferry, that S. and his family shall havp their ferryage free ; and S. owns land on which there is a saw-mill and growing timber, and contracts with N. that N. shall use the saw-mill and saw the growing timber at N.’s expense and cost; and S. shall convey the lumber from the mill across the ferry and sell it, and the two shall divide the gross proceeds equally; and S. hires, G-. to haul the lumber across the river at the ferry for $3 per thousand — the ferry-age of the lumber across the river is not the ferryage of S., and K. is not obliged to ferry the lumber free of charge.</p>

Petition for writ of mandamus. Tus petition alleges that one Adam, “ a small-pox patient”, is, and for six days has boon, lying and being in a tenement building immediately adjoining the place of business of the petitioner in the city of Portland; that tho locality is thickly populated with men, women and children, and there is great danger oí said disease spreading among the people.

J. B. Mayeran obtained a judgment for something over $2,900 against the petitioner, F. Dufernoy, in a civil action in this court, and it was adjudged that in default of payment the defendant he imprisoned. Process in the nature of garnishee having been served on Leon Yial, the said Mayeran obtained a judgment against the said Yial, to the amount of $2,600, on account of money alleged to be due from said Yial to said Dufernoy.

The defendant, Joseph Bertrand, was indicted for murder in the second degree, by shooting and killing Julius A. Moire with a pistol. The evidence disclosed that the homicide was committed in the store-room of the deceased, who was a grain merchant.

The plaintiff, haying received a severe injury at the elbow joint, was treated for the injury by the defendants as his physicians and surgeons; and he brings this action alleging want of proper treatment for tbe injury, claiming damages to tbe amount of $50,000.

<p>Self-Defense. — The law of self-defense does not justify one in following up Mb adversary after tlie immediate danger lias ceased.</p> <p>Reasonable Doubt — Reasonable doubt defined.</p> <p>Burden of Proof. —When tlie prosecution has established beyond a reasonable doubt that the defendant has killed the person slain, by moans of purposely shooting him with a gun, the burden of proof is thrown on the defendant to prove any additional facts that may tend to justify or excuse the killing.</p> <p>Idem. — In that case, if the evidence of the prosecution does not show facts or circumstances tending to justify or excuse the act, the burden of proof being thrown upon the defendant, the rule in regard to reasonable doubt does not apply to justification or excuse; but the defendant must show by a preponderance of evidence that tlxe killing was justifiable or excusable.</p> <p>Justification. — One may use all necessary force to prevent a forcible entry into his house, but lie has no right to use unnecessary force; and if he unnecessarily follow and shoot the party, after he has ceased to attempt to enter, the attempt forms no justification.</p> <p>Prkpondebuícb. — The question whether the killing was necessary in order to prevent a felony, is to be determined by the preponderance of evidence.</p> <p>Reasonable Doubt. — Tet, if tlie jury, upon the consideration of the whole of tlie evidence, entertain a reasonable doubt as to whether shooting the deceased was unlawful, they must give the prisoner the benefit of that doubt, and acquit him.</p>

The plaintiffs bring this suit against Joseph Paquett, Peter Paquett, Jacob S. Hunsaeker and The. Canemah Lumbering Company, alleging that that company is a corporation, whose board of directors consists of three members, and that the purpose of the corporation is the manufacture and sale of lumber; that these plaintiffs and the individuals named as defendants, are stockholders owning all the stock of the corporation.

The complainarit charges, that the defendant, a corporation engaged in navigating the waters of the State of Oregon, and plying between Portland, Oregon, and Victoria, a foreign port, was’ owner and had control of a steam-vessel called “ The Gussie Telfair.” That at the departure of said vessel from Portland, the plaintiff was on the wharf, and the defendant’s servants in the conduct and management of the vessel, fired a loaded camion from on board the vessel as a signal of…

This case was tried by tbe court upon, tbe pleadings and proofs, a jury being waived. Tbe facts' are stated in tbe opinion filed.

This was an action by a railway corporation, to obtain a right of way, for tbe plaintiffs railroad through a parcel of about three hundred and twenty acres of tbe defendant’s land.

This was an action by a corporation to bayo certain lands of tlie defendants, and a riglif of -way upon the same, appropriated to the plaintiff’s use, under the general incorporation law, for the construction of plaintiff’s proposed canal.

<p>The Donation Law. — Deceased Wira. — Where a husband and wife settled upon 640 aeres of land in 1844, and the family continued to reside upon and cultivate the land, hut the wife died on the twenty-sixth clay of September, 1850, no land was granted to tlio wife l>y the donation act, and the survivor can take under that act but 320 acres.</p> <p>Pleading. — Evidence ought not to bo inserted in, or made part of an answer.</p> <p>Motion to Strike Out. — On a motion to strike out part of an answer, if the motion contains hut a single specification, and includes some matters that ought not to be struck out, the whole motion mnst bo denied.</p> <p>Equitable Defense. — It is essential to an equitable defense that the defendant has no legal defense.</p> <p>Ijall of B.EVIEW.--A defective decree maybe reformed under a prayer for general relief.</p> <p>Patent to a Wrong Party, Not Void. — Where equity relieves from the effect of issuing a patent to a wrong party, the patent is held to be effective to pass the title from the United States, but the patentee is held to be a trustee for tlio benefit of tho rightful claimant.</p> <p>Sui'pliuijntaby Answer. — Material facts that did not exist at the commencement of the suit may be set up by supplementary answer.</p> <p>Error may be Cubed. — If it is error for a -witness to voluntarily state the contents of a written memorandum, the error will not vitiate the residue of his deposition if he at the time produce and exhibit the memorandum.</p> <p>Memorandum:. — The fact that a witness has looked at a memorandum to refresh his recollection before being called, does not render him incompetent.</p> <p>A Patent is Proof of Regularity or Proceedings. — After a patent has issued, the exhibition of the patent proves the regularity of preliminary proceedings.</p> <p>Stobeme Coubt. — If the question whether a woman who died before September 27, 1850, or her representatives, become entitled under the donation act, is still open to discussion, since the ruling in Ford v. Kennedy, 1 Oregon, 166, its review should be had in the supreme court.</p> <p>Privity. — One who has no right to or interest in the land cannot set up the disqualification of a donee. But one who settled on government land, in compliance with the donation act, while it was still government land and before a certificate issued to another, acquired such an interest as rendered him competent to set up the disqualification.</p> <p>Bilí of Review. — By our code, § 377, whatever subject matter could formerly have been presented by any of' the various formal bills in chancery, may now be brought before the court as an “ original suit;” and if the subject matter constitutes a defense, it may now be presented by an answer.</p>

Action for damages for the taking and detention of a pair of horses, tlie property of the plaintiff. Held: the property on an execution. The replication denies that the court had jurisdiction of the person of the defendant, jurisdiction to issue the attachment, under the judgment, or to issue the execution; and denies that the attachment was duly or regularly issued, and makes the same denials in regard to the execution.

The complaint alleges tbat tbe bones of plaintiff’s right arm were broken about midway between tbe wrist and tbe elbow. Tbat tbe fracture was “a simple fracture, and one wbicb could easily bave been reduced and caused to beal and become strong, by a surgeon of ordinary skill, by ordinary diligence and care.” Tbat tbe defendant, as a physician and surgeon, undertook tbe case for hire, and tbat tbe plaintiff strictly followed tbe directions of tbe defendant.

In form this was an action for a violation'of city ordinance No. 321, which provides against breaking “any gate or fence placed around any public square ” of .the city of Portland. It was tried in the recorder’s court, and judgment being had against the defendant, he appeals to this eourt.

This is a suit to foreclose a mortgage, executed ou the twentieth of June, 1859, by Cincinnatus Shultz and his wife, to the plaintiff, to secure the payment of $500, two years from its date, with interest, at three per cent, per month. . On the seventh day of the same month, said Cincinnatus Shultz-had purchased the lands thus mortgaged, from James B. Stephens, and had given his note, payable in ninety days, for $400 of the purchase money and interest.

The plaintiff sues for the value of work and labor done by him, as civil engineer. The answer is to the effect that the work was done for the Oregon and California K. It. Co., andnotfor the defendant; and that the plaintiff agreed to do the labor for such instructions in the art as should be imparted to him in the course of the work. The replication denies the allegations of the answer; and the cause was tried by jury.

This is an action for malpractice. The complaint charged negligence and want of care and shill, on the part of the defendant'as a physician and surgeon, in the treatment of the plaintiff, for an injury the plaintiff had received at his ankle joint. The plaintiff claimed $20,000 damages. ■ The answer denied negligence, want of skill and care, and alleged that defendant treated the plaintiff for the alleged injury with care, skill and diligence.

The plaintiff declared for the reasonable value of his services from July 1, 1868, to July 1, 1869; and for $80 gold coin loaned, which he alleged to be of the value of $114 in legal tender notes. The answer sets up a special contract that the. defendant would perform the labor at $60 per month; alleges payment, to an amount specified; and denies that the defendant borrowed any money from the plaintiff.

After the grand jury of the present term had been discharged, the district attorney presented the papers that had been certified by the committing magistrate in this case, and on his motion, the persons who had composed the grand jury were resummoned, in pursuance ol section 32 of the criminal code.

The respondent appeared’ specially for the purpose, and moved to dismiss the appeal for want of a sufficient service of notice of the appeal. The respondent had appeared in the justice’s court by an attorney who resides and has his office in the county, and the notice of appeal was served on the attorney and not on the respondent in person.

This action was commenced in justice’s court to recover $188 alleged to be due on a subscription for ten shares of the plaintiff’s corporate stock at $25 per share. The plaintiff had judgment, and the defendant appeals to this court. The case is now presented on motion to strike out parts of the answer. 1. The answer “ denies that plaintiff is a corporation duly-organized.” 2. Denies that the defendant agreed to take the ten shares. 8.

This is an action to condemn and appropriate lands to the use of a railroad company.

The jury having rendered a verdict in favor of the intervenor, the Oregon Steam Navigation Company, the defendant filed a motion for a new trial. The exceptions are stated in the opinion filed.

This case is presented, on demurrer to the complaint. The complaint sets up a contract, under which the defendants employed the plaintiff to work for the defendants, as master machinist, one year, and agreed to pay him at the end of each month; for the first four months, $125 per month, and for the residue of the year, $200 per month.

The plaintiff sues to foreclose a lien for lumber furnished in the construction of the house of Caroline, the wife of David Wittenberg, at the request of the husband and wife; the plaintiff having filed notice of his lien on May 28,1869. O. Risley, alone defends. He claims title, as purchaser, under a decree of foreclosure rendered in this court, foreclosing a lien of O. D. Buck, for work and labor done in the construction of the same building.

The plaintiff was required to, and did, enter into an undertaking, that he would appear as a witness in the case of the State v. Hayden, that defendant being charged with murder.

This is a suit for partition of a tract of land, lying on tbe west bank of tbe Willamet River, and extending above and below the Willamet Kails, at Oregon City. Tbe plaintiff avers that be is owner of an undivided half of tbe parcel, and that tbe People’s Transportation Company is the owner of the other undivided half, and that each of the other defendants claim an undivided eighth of said premises, adversely to the said People’s Transportation Company.

The petitioner sued out a writ of habeas corpus. It appears from the petition, and tbe return to tbe writ, that a civil action was commenced in a justice’s court, to recover $46, upon on account stated, in wbicli tbe plaintiff, Pierre Manceitt, filed an affidavit, and procured a warrant of arrest against this petitioner, who was defendant in tbe civil action, and caused tbe petitioner to be arrested.

The case is presented upon demurrer to the complaint. The facts alleged are, substantially, that the defendant, being owner of certain premises in the city of Portland, leased the building to the plaintiff and his two brothers; that a framed awning, attached to and part of the building, extending over a sidewalk of the public street, was badly constructed and insufficient, unsafe and dangerous to the occupants of said building and to persons using tlie sidewalk ; that tlie…

The plaintiff declared against the defendants, J. B. Harter and Asa Harker, upon a promissory note for $5,000 and interest, signed “J. B. Harker & Co.,” and alleged that the defendants were partners, doing business under the firm name of J. B. Harker & Co., and as such made the note.

This is a special proceeding under the statute, to contest an election to the office of sheriff of Clackamas County. The plaintiff having fixed in his notice a time for the trial, moves for an order setting an earlier day for the hearing of the cause. The facts appear in the opinion.

Upon filing tbe petition for a mandamus in this case, it was ordered that the defendant show cause why a writ should not issue. At the time appointed, the parties appeared before the judge at chambers, and the defendant filed an answer to the petition.

<p>Election Contest. — Precinct.—An elector should vote for county officers only in the precinct whore he resides.</p> <p>Pabdox. — A pardon by the executive does not restore to a person convicted of felony the rights of an elector. ‡</p> <p>Residence. — Every person must have some fixed place of residence, or must labor under a disability that neither the law nor the courts can relieve. The mere passing in and out of a precinct will not establish a residence, although the person’s occupation maybe suchas to make it inconvenient to vote at any other place, or if he has no fixed place of residence.</p> <p>Challenge. — Whenever a person is challenged by a legal voter, unless such challenge is withdrawn, he lias no right, unsworn, to vote; nor can the judges receive such vote.</p> <p>Closing Polls. — After tlje hour for closing'the polls, they cannot be opened again.</p> <p>Residence. — An intention to remove immediately after the election does not amount to a change or loss of residence; there must be a union of act and intention.</p> <p>Bebden of Peooe. — A party attacking a voter who has voted must show that he is disqualified.</p> <p>Employees of the Govbbnment. — Although residence cannot be gained or lost by reason of the person’s presence or absence, while employed in the service of the United States, yet one so employed may change his residence.</p> <p>Rejected Votes. — All rejected votes should appear on the poll book in the manner prescribed in sec. 18, p. 701, of the compiled laws.</p> <p>Naturalization. — One who has obtained his final citizen papers, becomes a voter at the time of being naturalized.</p> <p>Challenge — Pkooes.—Judges of election Rave no right to reject votes without any evidence that they are illegal, the voter not being challenged, or having taken the prescribed oath. If they desire other proofs beyond the voter’s sworn statement, the evidence must be jiroduced at the time he votes.</p> <p>Election Contest — Will oe Majoeity . — In a contest, the will of a majority of the legal voters, as expressed by their votes, must be carried into effect.</p>

During the regular October term of this court for the year 1870, “Paul L. Shumway and Bro.” submitted their verified petition, praying for a writ of review to the county court of Baker County, to correct alleged errors of said court in refusing, upon motion and affidavits of petitioners, to correct the assessment of their taxable property, made by the county assessor in August last.

The complaint filed October 18, 1870, alleges that defendants are partners, that as such they purchased from plaintiff one wagon on May 3, 1870; that they agreed to pay plaintiff therefor one hundred and sixty dollars ($160), and that they failed to so do. Summons and copy of complaint were duly served by proper officer October 19,1870, in Union County, Oregon, upon defendant Laxton.

The allegations of the complaint are, that about February 1st, 1867, the plaintiffs and the defendant entered, into a partnership, under the name and style of “Barker & Co.,” in a general mercantile business at Portland, Oregon, for a period of one year.

The plaintiff alleges that be bad become an accommodation indorser for one Huguinin, on a note of $100, which be paid under compulsion and was about to commence an action against Huguinin, and to sue out an attachment against bis goods to recover tbe amount.

<p>Contract— Construction. — Where an estimate had been previously made, and the defendant contracted for removing earth, in the words, “ Eor grading as per estimate on file, thirty cents per cubic yard, ” Held, that prima facie the estimate must be taken as correct, “ and the burden of proof is on the plaintiff to show that there is a mistake in the estimate.</p>

The defendant was indicted under the statute which makesNt a criminal offense for any person to “barter, sell or dispose of” spirituous liquors without a license. On the first trial thé jury failed to agree, and the case coming on a second time, the defendant’s counsel requested that the instructions be given in writing.

The defendant had recovered a judgment for $79 25 against the plaintiff, Angeline Keimard, in a justice’s court, in an action for work done and material furnished in painting a house, and had sued out an execution, J. P. Kennard, the husband of Angeline, not being made a party to the action. In that action the defendant did not plead her coverture, but appeared and answered to the merits.

This is a suit for tbe specific performance of a contract for the sale of a block of land in the town of East Portland. In March, 1866, Joseph Long and Win.

This ease came on to be heard upon a demurrer to the answer of certain of the defendants. The facts are sufficiently alluded to in the opinion.

This is an appeal from tbe decision of the register of state lands for tbe La Grande District.

The petitioner, the sheriff of Wasco County, deeming himself entitled to additional compensation for certain services, and his claim therefor being denied by the county court of Wasco County, obtained a writ of review to. correct the judgment of the said court. The writ was issue,d and duly returned with the record in the case. In this court the respondent demurred specially, and all the questions of law involved were raised by said demurrer.

A writ of habeas corpus having been served on C. Bills, sheriff of Multnomah County, he returned the writ, stating that the petitioners were held by virtue of a commitment issued by D. G. Lewis, Police Judge and ex-officio Justice of the Peace.

This being a proceeding to perpetuate testimony, tbe petition presented the following statement: That the testimony of Green C. Davidson, and of a person called Joseph Thomas, who reside at Fairfield, in Marion County, Oregon, is and will be material to the defense of your petitioner in said action.

<p>The facts are stated in the opinion filed in the cause.</p>

The plaintiff brings Ms action to recover an undivided half of the premises in question, known as the Caruthers estate. He alleges “that he is the owner in fee simple of the undivided half” of the promises; (describing the land); and adds that he “has been such owner since the fifteenth day of September, 1870, by tbe following chain of title,” and proceeds to set out, according to their legal effect, the muniments of his title.

<p>Joinder of Cotenants. — In an action for the possession of land the defendant claimed for himself and others, his cotenants; alleging that he was owner of an undivided fifth of the parcel, and claiming to be entitled to the possession of one fifth in his own right, and to the four fifths as co-tenant with his said tenants in common: Held, that the answer was defective in not giving the names of the alleged tenants in common.</p> <p>New Parties. — The names of the alleged tenants in common of the defendant being set out in an amended answer, leave was granted to amend the complaint and to make them defendants. The motion of one of those cotenants, that the action be dismissed as to her, without prejudice, was overruled.</p> <p>Continuance. — An issue of fact being joined as to some of the defendants, but as to others the cause not being at issue on a question of fact, the plaintiff submitted a motion to continue for the term because of the absence of witnesses, no motion being yet made to set the case down for trial: Held, that the motion was premature.</p>

The complaint, after alleging that the land in question had been conveyed by W. W. Chapman to the defendant, Orville Eisley, states that the said Orville Eisley and his wife for a valuable consideration conveyed the said lot to Charles Goodnough, (the plaintiff’s grantor), by their deed duly executed and delivered.

This was an action on a promissory note. Tbe answer does not deny tbe consideration or tbe execution of a promissory note for tbe amount claimed, but tbe separate answer of Daniel Wilson sets up, tbat since tbe execution of tbe note, tbe plaintiff and W. C. Wilson bad altered tbe note by adding to it tbe words, “in gold coin.” Tbe replication denies tbat tbe alteration was made by tbe plaintiff, but alleges tbat it was made by W. C. Wilson; and sets up, in substance, tbat…

This was a proceeding under the statute to condemn and appropriate a parcel of tbe defendants’ land for tlie use of tbe plaintiff’s railroad. The complaint describes this parcel of 4 69-100 acres of land, sixty feet in width, by metes and bounds, and “as lands of tbe defendants; ” tbe initial of tbe boundary being designated as a point “on tbe northern boundary of the defendants’ land claim.” Other than tbis tbe pleadings do not show wbat land is owned by tbe defendants.

<p>Be-enacting tlie law fixing the salary of the county treasurer, does not deprive him of the right to a percentage for receiving school funds, allowed to him by a statute not referred to in the re-enactment.</p>

<p>Cost on Appeal. — Where on appeal from a justice’s court the respondent obtains a verdict for less than he recovered in a justice’s court, the costs on appeal are in the discretion of the court.</p>

The notice of appeal described the judgment in the words, “from a judgment rendered in your favor against me on the 20th day of March, 1871, by R. B. Willmot, justice of the peace, * * * for $57.75 and costs.” The transcript disclosed a judgment for $52.50.

The complaint was for $40 per month, alleged to be the reasonable value of labor done by the plaintiff for the defendant at his request, from a specified day in 1868, for a period of two years.

This is a suit to recover a parcel of land, formerly conveyed by the plaintiff, in trust, on tbe ground of forfeiture by misappropriation.

The plaintiff seeks to redeem .certain premises. The defendant denies tbe plaintiff’s right to redeem, and claims to be owner in fee. Tbe plaintiff being owner of lots 3, 4, 5, 6 and 7 in block 2, in Erushes’ addition to East Portland, mortgaged them to one Thomas Cully, in March, 1869, to secure $800 and interest.

The plaintiff claimed $L0,000 damages in an action for slander. The words of the defendant, set out in the complaint, imputed to the plaintiff, pecatum illudinter chrisüanos non nominandum. The answer averred as a defense that the words were true; and in mitigation, that they were spoken under circumstances of great aggravation, and at a time when the defendant was greatly excited. The defendant’s counsel requested that the charge be given in writing.

'Puts is a suit for tbe dissolutiou of partnership, aud the answer filed consists of denials of the allegations of the complainants. The defendant, S. G. Elliott, moves the circuit judge at chamTaers, for an order granting leave to file an amendment answer in the nature of a cross-bill, the cause being before a referee for hearing.

This action is for the recovery of an undivided third of a parcel of land, that had been conveyed by Dennis Harty, the plaintiff’s deceased husband, in his lifetime, to the defendant’s grantor.

This cause was submitted on the defendant’s motion to strike out parts of the complaint. The facts are stated in the opinion.

Thk plaintiff, W. W. Harper, who it is averred is insane, sues by guardian, to set aside certain deeds and to recover possession of the premises in controversy. „ The plaintiff charges that on June 2, 1860, said Harper executed a mortgage while said Harper w'as insane; that while said Harper was still insane, the said mortgage was foreclosed, and the premises sold to the mortgagee, A. M. Harding, in April, 1864, wdio afterwards conveyed to the defendants, King and Hawley.

This is an application to open a decree of divorce, and to allow tbe defendant to answer, made under section 57 of the code.

The complaint shows that these defendants in 1870 commenced a foreclosure suit, in the circuit court in Marion County, against this plaintiff and others who are named, and recovered a decree for $281.33 and interest, and for the sale of certain lands in said Marion County.

The plaintiff obtained judgment before a justice of the peace in an action for work and labor, and tbe case comes into this court upon a writ of review on petition of tbe defendant. In tbe return on tbe summons tbe constable gives bis official title, “constable of Couch precinct,” without naming tbe county. \ The complaint was in writing, was certified by the j astice of the peace only.

In a proceeding under the statute to enforce a mechanics* lien, the complaint alleged that the contract was made with said M. Keith, as owner of the building. The defendant demurred.

The plaintiffs are owners of lot 2, and the defendants are owners of lot-1, in block 182 in the city of Portland, and the controversy relates to the locality of the line between those lots. It presents the question whether that line is fifty feet, or whether it is fifty-seven feet, south of the south line of Salmon street, as that street is now 'used and occupied. A motion is made to strike out parts of the answer.

The plaintiff sues to recover damages for wounds and injuries to Ms person, caused by a vicious bull, the property of the defendant, alleged to have been wrongfully permitted to run at large. Tbe answer denies knowledge tbat the bull was of dangerous or ferocious disposition. Denies that the bul] was wrongfully at large. Denies that the bull pushed or struck the plaintiff. The ease was tried before a jury.

<p>County Court.- — Probate.—Jurisdiction.—The county court is to be regarded in probate proceedings as a superior jurisdiction; it being a court of reoord deriving its power as a probate court from the constitution. And when its orders for the sale of real and personal property of deceased persons appear to have been regularly made, reciting all the jurisdictional facts necessary to authorize the order, no presumption will be indulged against the recitals, and extrinsic evidence of their truth is not necessary, but the burden of showing that the court has not acquired jurisdiction is on the party who disputes the truth of the recital.</p> <p>Order of Sale. — Mistare in Date. — Presumption.—The order of sale recited notice to all persons “ to appear on this day; ” an order to show cause was made returnable on the fifth of April, but the heading of the order of sale was, “ at a term of the court began and held on the first Monday, the fourth of April,” etc.: Held, that a mistake in making up the record will be presumed, rather than that the order was made before the return day.</p>

This ca$e comes before tbe court upon a writ of review, directed to the county court, sitting as a court for tbe transaction of county business. Tbe parties submitted an agreed, statement of facts to tbe following effect: Tbe petitioners were assessed in 1871 for certain lots of land owned by them, valued at $64,000.

<p>An ordinary promissory note, tlie( owner of which is absent from this state, is not an “indebtedness to this state,” which can be deducted from the debtor’s assessment.</p>

This is a suit to foreclose a mortgage executed by the defendants in favor of the plaintiff, Mrs. N. J. Gaston, to secure a promissory note, in form as follows: “$2,000 Portland, Oregon, December 14, 1870. “Twelve months after date, without grace, we jointly and severally promise to pay to the order of Mrs. N. J. Gaston, at the First National .Bank of Portland, Two Thousand Dollars, for value received, with interest from date thereof until paid, at one per cent, per month,…

This is an action of ejectment for the north half of a parcel of land known as the Petit land claim. The' plaintiff was formerly the wife of Hubert Petit, but he obtained a decree of divorce against ber in a suit commenced in T857.

This is a suit to remove an alleged cloud l'rom tlie plaintiffs title.' The plaintiff avers that she is owner and in possession of the parcel of land known as lot 6, in block 221, in the city of Portland. She sets out a series of conveyances, from which it appears that both tho plaintiff and defendant claim title from the United States through Wm. M. King, now deceased. The defendant claims title under a sale made by the administrator of the estate of Wm.

The complaint in substance alleges that Robert Moore in his lifetime, in 1852, sold and conveyed by deed to Daniel H. Ferguson, a tract of land, and water privilege at the Willamette Falls, for fifty thousand dollars; of which sum forty-five thousand remained unpaid, and a note for that amount was taken by Moore, secured by mortgage on the premises.

This suit was brought by R. H. Dearborn, administrator of the éstate of R. E. Stratton, deceased, to foreclose a mortgage on land in Douglas County, given by James Patton to said Stratton, and dated on the twenty-fourth of February, 1862. John Smith and D. C. Underwood were made parties, defendant, because they were judgment creditors of said Patton.

The plaintiff in this action seeks to recover damages received by the minor son of the plaintiff, caused by said minor having fallen through a bridge' on a county road, within said county of Multnomah. The complaint alleges that the said bridge belonged to the county, and that the same was out of repair through the negligence of the county, and #h consequence of such negligence said child became injured.

This action was brought by Walter Moffitt and A. Meier, plaintiffs, in the circuit court of Multnomah County, against Stephen Coffin to recover damages for the alleged breach of a covenant of warranty, made by Coffin to the assignors of plaintiffs, for certain real estate in the city of Portland, in a deed by Coffin and wife, from which real estate, consisting of town lots, said plaintiffs were evicted by a person claiming the title from Coffin prior in date to the title of…

<p>Right of Way. — Joindee of Defences. — In an action to condemn land for a railroad, the defendant has his choice, either to rely on what the statute (Code, p. 670, 345), denominates a legal defense, or waiving that, plead the value, or resulting damages, or both; but he cannot on the same trial, contest the plaintiff’s right to take the land, and try the question of damages.</p> <p>Damages. — Exception taken was this, “ that the plaintiff below was allowed to prove on trial, that the construction of a railroad across the land of the defendant, would, be of more benefit than dfcoaage thereto, excepting the value of the land actually taken by plaintiff,” and the instruction of the court therein, excepted to was thus, “ if the benefits to the lands of the defendant, are equal to the damages, then all that you should assess is the value of the land taken:’ ’ Meld, these are not errors.-</p> <p>Costs. — Tendee.—A tender of one hundred dollars was'made on the day of trial by plaintiff, which the defendant refused to take, and failing to recover by verdict, more than fifty dollars, the' defendant was adjudged to pay all costs subsequent to the tender: Meld, that under sec. 49, p. 671 of Code, this was error, the tender not having been made before the commencement of the action.</p> <p>Fence. — Who is to build the fences along a railway 1</p>

This action was based upon an undertaking entered into in a civil action to procure a writ of attachment. The complaint charges that the attachment was unlawfully issued, and unlawfully levied upon about 100 bushels of oats, 100 bushels of wheat, 800 bushels of barley and ten tons of hay — one half of which belonged to plaintiff — that the property was detained, specifying the time, and the plaintiff was damaged thereby $220.

The matter controverted in this case was submitted to the circuit court for determination without action, under section 254 of ■ the practice act, by a statement in writing, containing the facts. The case, stated by the parties, shows that James B>.

The complaint in this action alleges in substance, that Peter A. Weise, the plaintiff, is the owner of the land situated at the mouth of the Tualatin river, upon the southerly side thereof, and that Samuel Smith, the defendant, placed a boom fast upon the land of'the appellant, and kept it across said river, to the damage of the plaintiff in the sum of five hundred dollars.

<p> Appeal from Baker County. </p> <p>The facts are stated in the opinion filed.</p>

The complaint in this case alleges that the plaintiffs are the owners of the real estate described therein, and that Mary’s river, in its natural course, flows through the same, and is not a navigable stream; and that plaintiffs are the owners of a dam and mill on said premises, which said mill lias been used by plaintiffs and their assignors for many years.

This -was originally an action at law brought by tbe plaintiffs, wbo ar'e appellants here, to recover possession of certain lands patented by the United States to tbe heirs-at-law of Joseph and Sarah Delay, deceased.

In this case the appellants claim six hundred and forty acres of land In Multnomah County., They allege that a British subject, William Johnson, was residing on this land prior to the treaty of 181.6 between Great Britain and the United States, fixing the northern boundary of Oregon territory and terminating the convention of 1818, and that the third article of the treaty of 1846 gives these appellants, who claim under him, Johnson, a title to this land against the…

At tbe November term, 1869, of the circuit court for Benton county, the defendants, appellants here, withdrew their answers, and judgmemt [decree] was rendered upon the complaint as upon failure to answer. The defendants afterwards gave notice of an appeal, and filed the usual boud, but failed to file a transcript in the supreme court by the second day of this term.

At the April Term, 1864, of the county court for Douglas County, a license was granted to M. M. Learn, to keep a ferry over Umpqua River, known as Trenton Ferry, for the term of five years. At the February Term, 1869, of the same court, Learn applied for a renewal of his license for a term. of five years. At the same time, Henry Beckley applied for a license to keep that ferry for five years.

Appellant obtained a divorce below, from respondent, on the ground of harsh and cruel treatment, blit in the decree the court awarded the two minor children to the respondent until ordered otherwise. From this portion of the decree, he took an appeal. Respondent moves to dismiss the appeal oh two grounds: 1st, there is no statement, and 2d, that such an order is not a subject of appeal.

This action was commenced in the county court of Douglas county to recover the possession of certain personal property, viz: six head of cattle. The defendant recovered a judgment, which was removed by appeal to the circuit court. The complaint contains the usual allegations for such recovery.

The complaint charges that the defendant agreed with the plaintiff for the consideration of $800, to sell and convey to the plaintiff a certain farm described in tlie complaint, a certain town lot also described, and twenty bogs designated — that the said sum has been duly paid to the defendant in gold coin; that defendant has executed a sufficient deed “to apart only of the real property,” and has refused, and still refuses to deliver the hogs, and that the plaintiff has…

This case was an appeal from an allowance of disbursements to respondent, and invokes no questions other than those decided in Crawford v. Abraham, et al., 2 Oregon, 163, and requires only an extension of the rulings there.

Plaintiffs, in a civil action, in a justice’s court, against one Morst, had procured his arrest. Respondents here, defendants below, executed an undertaking, and procured the discharge of Morst from arrest. After judgment against Morst, and after execution against his property and a return of none found, an execution was issued against his person, which was returned not served, as Morst had left the state.

The plaintiff, appellant, as sheriff of Douglas County, from August 1st, 1866, to July 1st, 1868, averred that he performed certain services for which that county were liable to pay him, and set forth his claims thus: Writing 84 notices for collection in each precinct, for the years 1866-7 ................................................................$ 21 00 Posting the same................................................ 42 00 Mileage to and from, posting the…

Crossman brought this action to recover damages from Lander, for an alleged trespass, averring that Lander entered upon respondent’s premises wrongfully, and removed therefrom a house. The appellant’s answer' admitting the entry, denies its' wrongful character, and claimed property in the house, averring that he built the bouse upon premises, to which these parties were contesting claimants under the land laws of the United States.

From the judgment and sentence passed upon appellant, in the court below, on a verdict of guilty of an attempt to commit rape, he appealed to this court, and the notice of appeal contains no specification or assignment of error. Appellant moves the court to dismiss the appeal for that reason.

<p> Appeal from Lane County. </p> <p>This action was to recover $1,000, upon a promissory note made by the defendant on the twenty-first of December, 1866, payable to the plaintiffs. The defendant answered that the plaintiffs, having judgment against one J. L. Bromley, had caused execution to issue and to be levied .on a tract of land in Lane County, known as “ Brum ley’s* Dandi;” which tract was offered for sale on the execution, on the fifth of December, 1886, and was by the sheriff struck off to one Woodward, who failed to complete the purchase; that the defendant, at the plaintiffs request, took the place of Woodward, and completed the purchase undertaken by Woodward, taking the land at $4,000, paying $2,000, and giving his two promissory notes of $1,000 each, one note payable April 1, 1868, and the other April 1, 1869, that the plaintiffs knew that the title to a part of the land was not good, but represented to the defendant, that the title was good, and represents that the tract contained 1,200 acres, that through the plaintiff’s representations the defendant was induced to take a title under said sheriff’s sale, by an assignment from Woodward, of the sheriffs certificate of sale, under said judgment; that the tract contained only 1,040 acres, and that the title to .a large part of that failed, to defendant’s damage, in the sum of $2,500. The defendant asks to have the same off-set against this note, and asks that the other note, dxxe April 1, 1869, be delivered up to be cancelled. The replication denied the affirmative allegations in the answer.</p> <p>The transcript contains the evidence taken on the trial of the cause. The evidence, which is somewhat voluminous, relates to several disputed questions of fact; some of which, under the view taken of the case by this court, are not material. Among other things, it was shown on the trial, that at the time of the execution of the two promissory notes, one of which is the basis of this action, and at the time of transferring to the defendant, the sheriff’s certificate, originally intended for Woodward, the plaintiffs made a written promise or agreement to the defendant Osborne, which was subscribed by tbeir attorney, and accepted and offered in evidence in this case by the defendant, in the words following, viz.: “In consideration of a sale of lands, say about 1,200 acres inLane County, made December 5th, 1866/ by virtue of sundry executions against J. L. Brumley, and the certificate of sale having been, this twenty-first December, 1866, assigned by Woodward, the purchaser, to A. M. Osborne, and inasmuch, as since said sheriff’s sale, and before the assignment, a rumor has come into circulation, that the legality of said sheriff’s sale may be contested, and the said Osborne having given his notes for $4,000, purchase money. Now it is agreed by H. W. Corbett, Henry Failing, Smith & Davis, Canfield, Pierson & Co., S. A. Wood, and Jones, Tobin & Co., the creditors, at whose instance said execu-tions were issued, in consideration of the foregoing, that if it shall be adjudged that said creditors had no legal right to sell said premises, and that, if said Osborne shall, by reason thereof, be legally compelled to give up possession of said premises, then said creditors shall refund the purchase money paid by him, with interest from the date of, being so compelled.</p> <p>“S. Ellsworth,</p> <p>“ Att’y for said creditors.”</p> <p>“Dated December 21, 1866.</p> <p>The court below rendered a judgment for plaintiffs, and defendant appealed.</p>

<p>Pbobate Sale. — Infant TIeib a Necessaby Pabty. — Held, That a sale of a decedent’s real estate to pay debts by virtue of an order of the probate court, under the statute (1855), is void as to an infant heir not made a party to tlie proceeding, and for whom no guardian was appointed. Such proceedings are hostile to tlie heirs, who arc necessary parties, and the probate court must have jurisdiction of the persons (as well as the subject matter) in the manner provided for in the statute, or the sale will be void.</p>

The facts are stated in the opinion. In 1865, W. H. Packwood, by a written lease, demised the fourteen twenty-fourths of the Clark Creek mining ditches to S. B. Morse for the term of three years, and afterwards sold his interest in the ditches to Alexander Stewart, the plaintiff. In December 1867 Morse employed Bufus Perkins the defendant to manage and attend to the ditches during his absence; he also instructed him how to dispose of the proceeds of the sales of water.

On the twentieth of June, 1859, one of the defendants, Cincinnatus Shultz, for a valuable consideration, executed to the plaintiff his note for $500, payable in two years, with interest at three per cent, per month. To secure the payment of the note,. Shultz and Mary his wife executed a mortgage upon the property described in the complaint, of which Shultz was then the owner in fee, which mortgage was duly recorded on the twenty-second day June, 1859.

This is a suit in equity to restrain the defendants, who are' the county officers of Umatilla county, from tearing down the old county building at Umatilla landing; and from incurring additional debts and liabilities in behalf of Umatilla county; because the indebtedness of said county, already exceeds the constitutional limit.

A motion was made in tins case to dismiss the appeal, for the reason that the said appeal has not been perfected, since there was no undertaking filed, as was required bylaw; and a cross application to file an undertaking, supported by affidavit, is also made.

<p> Appeal from Multnomah County. </p> <p>The facts are stated in the opinion.</p>

<p> Appeal from Multnomah County. </p> <p>The facts are stated in the opinion.</p>

<p>A Coepouation Confined to Specified Business. — A corporation organized for the purpose of “manufacturing and selling lumber,” can not hold a lien for labor performed in the construction of a building. Where such a corporation sued to enforce a lien for both lumber furnished and labor performed in the construction of a building, and the complaint failed to show how much of the gross amount was for lumber furnished, the judgment was reversed.</p> <p>Mechanics’ Lien. — Building.—The defendants occupied several buildings as a woolen factory, on some of which the material was furnished and the labor performed; the mechanic’s lien does not extend to all the buildings, but is confined to the building fox which the material was furnished or on which the work was done.</p> <p>Idem. — Pleading.—It should appear by the complaint that notice of the lien was filed in pursuance of the statute.</p>

<p>Appointment to Office. — The appointee of the Governor appointed to fill a vacancy in office occasioned by death or resignation, only holds said office until the first general election after the vacancy occurs.</p> <p>Supplying Idem. — At that time the people may supply the office by election.</p> <p>Teem. — The term of an office attaches to the person of the individual elected to fill the same.</p> <p>Idem. — Whenever a county judge is elected his term of office continuos for four years, unless terminated by death or resignation.</p>

<p> Appeal from Benton County. </p> <p>The facts are stated in tlie opinion.</p>

<p> Appeal from, Polk County. </p> <p>This action was originally brought in justices’ court, Multnomah precinct, in Polk County, by Hill, to recover $150, the value of a horse from the Mellons. The defendant James answered, admitting an indebtedness, but claimed an indebtedness from plaintiff on open mutual account of $214.80, over and above.the $150, claimed by plaintiff. The cause was only tried upon the issues presented, and judgment rendered for defendants.</p> <p>Plaintiff appealed to the circuit court, when referee was appointed to take the testimony and report the law and the facts. Beport submitted at. the April term, 1870, with judgment for defendant, in the sum of $31.33. Objections were filed, and after argument, the court below modified the judgment of the referee, and reduced the same to $11.23. Plaintiff appeals to this court.</p>

<p>The facts are stated in the opinion.</p>

<p> Appeal from Benton County. </p> <p>The facts are stated in the opinion.</p>

<p>Collateral Undertaking. — Pleading.—In case of a collateral undertaking under the statute of frauds, the plaintiff should declare specially.</p> <p>Idem. — The’ complaint must show that a contract was made between the parties, and that it was upon a consideration.</p>

This is an appeal from the decree of the court below, dissolving the bonds of matrimony between plaintiff and defendant, and awarding the custody of the two minor children to the defendant. The plaintiff appeals to this court, and relies upon two assignments of error for reversal of the decree. I. That the court below erred in not finding the defendant (respondent), guilty of adultery. II.

<p> Appeal from Multnomah County. </p>

Respondent’s attorney filed a motion to dismiss this appeal, for the reason, that there had been no'proper and. sufficient service of the notice of appeal. Pending the argument upon said motion, appellant’s attorney asked and obtained leave of court to file a cross motion, requesting permission to amend tbe return on said notice so as to conform to certain facts presented.

<p>Outstanding Wabbants. — How Payable. — Where there are outstanding warrants against a school district, the clerk may pay those first presented. It is not necessary that the money of each year bo exclusively applied to pay for schools taught during the yoar in which it was levied.</p> <p>Mandaitdb. — Where Hie clerk has money in his hands applicable to the payment of a warrant, which upon presentation he refuses to pay, the proper remedy is by mandamus.</p>

<p> Appeal from Wasco Circuit Court. * </p> <p>The facts are sufficiently set forth in the opinion.</p>